Notre Dame Law Review

Volume 21 | Issue 2 Article 2

12-1-1945

Approach to Legal Research: A Study in Sourcesand MethodsPaul M. Dwyer

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Recommended CitationPaul M. Dwyer, Approach to Legal Research: A Study in Sources and Methods, 21 Notre Dame L. Rev. 92 (1945).Available at: http://scholarship.law.nd.edu/ndlr/vol21/iss2/2

APPROACH TO LEGAL RESEARCH:

A STUDY IN SOURCES AND METHODS

In the average lawyer's office the books with which hesurrounds himself are not too often visited; his efforts be-ing primarily in the practical give-and-take of everydaypractice. As a result, the more abstract problems of legal re-search, when they finally confront him, present a most for-midable hurdle. The multitude of the reports, the com-plexity of the search-books, no less than the labor of the in-vestigation itself, are most discouraging; and it is smallwonder that frequently he is satisfied with only a cursoryinvestigation, relieved at finding a single case in point whenthere may be hundreds, or that he is eager to shift the burdenof the search upon younger, less-experienced associates.

It may be some comfort to know, however, that the situa-tion is not a new one. Over a century ago, before our forty-nine jurisdictions started grinding out the thousands ofcases which today make legal research such a laborious task,English lawyers, handling the common law of a single juris-diction, raised their voices in loud protest against the "greatcollection"'I and "vast accumulation" 2 of decided cases.This ever-recurring complaint, calling almost for a Hitlerian"burning of the books," has received the considered atten-tion of the American Bar Association, in a most illuminatingreport.3

Since, even under the best of circumstances, the difficultiesof research are inevitably with us, and in fact multiply aseach year's production of cases is added to the alreadyburdensome bulk of our case-law, it behooves the practi-tioner, even though he may regard himself as ordinarily far

1 As long ago as 1786 this complaint- was made by Justice Buller in Birch v.Wright, I T.R. 383, 15 Eng. Rul. Cas. 626.

2 The law was thus described in 1788, in the preface to Tomlin's RepertoriumJuridicum.

3 Report of Special Committee on Legal Publications and Law Reporting.1940, Annual Report of American Bar Association, 65; 263-300.

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removed from the realm of books and research, to have atleast a passing acquaintance with the sources and methodsof research. To lighten the load a little, by giving, with theaid of a few simple analogies, a brief description of our morecommon source-books, and by pointing out a few of the moregeneral touchstones and cautions to be observed in their use,is the object of the present article.

I

While there are many other fine aids to "getting at" theLaw, including the ever-helpful citators and (for the spe-cialist) the invaluable loose-leaf services,4 it may be saidthat, for the purposes f the general practitioner, there areat the present time three principal methods of organiza-fion of our case law. These may be described as:

Pigeon-hole ---------------------------------------- digestsFluid -------------------------------------- encyclopediasSpecific -------------------------------------- annotations

To use another analogy: Let us assume that the field ofLaw is literally a "field," and that in it is a small object forwhich, in complete darkness, we are making a most carefulsearch. To facilitate that search, we use three differenttypes of light, representing each of the above three methodsof organization of the Law. These three types of lightwould be:

Countless pin points of light --------------- digestsA diffuse glow ----------------------- encyclopediasSpotlights -----------------...------------------ annotations

Just as in the physical world, each of these three types of"light" has, to the searcher in the legal field, its own specialfunction and purpose - with its own peculiar advantagesand limitations. No one of them represents an exclusivemethod of approach to the Law; although, in arguments

4 For description of citators and loose-leaf services, see Materials and Methodsof Legal Research: Hicks, p. 300, 328.

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over their relative merits, such a claim may inadvisedly bemade. Obviously, the type to be used in a given instancedepends upon the nature of the particular problem at hand.

II

In America, as in no other country, the digests I of theLaw have had their highest development. This is due, nodoubt, to the pressure of two conflicting forces: (1) thegreat multitude of reports, and (2) the demand of the practi-tioner for a case "on all fours." The immediate practicalobjective of the digesters has been to furnish, to those whobuy their books, the means of finding a case in point; but,in doing this, they also serve the profession generally bybringing the great mass of case-law into some kind of intelli-gible organization. Thus has private gain, in the world oflaw-books, been the occasion of great public good.

Digests, representing the "pigeon-hole" or "pin-point"approach to the Law, are built on the basis of a logical oranalytical break-down of the Law into divisions and com-partments. The entire body of the Law - whether it bethat of the whole country or of a single jurisdiction - issplit up among certain grand divisions,6 arranged alpha-betically. If the subject matter is quite extensive, the granddivisions are further subdivided; but this time on ananalytical, not alphabetical, basis. The grand divisions, withtheir subdivisions, form the skeleton of the digest. Withinthis framework are located, also on an analytical basis, thespecific sections (sometimes referred to as "key-numbers").These consist of thousands of tiny, preconceived compart-ments, into which are filed (digesters would say "classified")

5 The most prominent of the digests is the American Digest System (Decen-nial or "Key-Number" Digest). Others include the LRA and ALR Digests, theU. S. Supreme Court Digest, and various local and special digests. The principalEnglish digest is the English and Empire Digest.

The American Digest System is described at length in two excellent articles onFinding the Law, and A Formula for Finding the Law, by Urban Lavery, in25 Am. Bar Asso. Jour. 383, 911.

6 There are 415 grand divisions in the American Digest System.

APPROACH TO LEGAL RESEARCH

the digest paragraphs. These digest-paragraphs, usuallyidentical with the headnotes at the beginning of each di-gested case, give in succinct form the holdings of the courtson the specific points decided in the cases digested. Thusis created, on a grand scale, a complex filing system for thedisposition of the multitudinous products of the courts.

The primary use of this "pigeon-hole" or "pin-point" ap-proach to the Law is in the finding of exact cases in point.In their capacity to bring up to the surface, and to preciselyreflect, the thousands of minute specific holdings which lieburied in the reports, the digests are unexcelled, and in thisrespect have some advantages over their rivals, the ency-clopedias and annotations. They are particularly useful intwo situations: (1) where the searcher, already knowingthe background and principles of his subject, desires onlyquickly to find cases exactly in point, perhaps to bolster abrief or argument, or (2) where the searcher, having ampletime and library facilities, desires a complete collection ofcases, which he will afterwards read in full, determining forhimself what the law is, without the aid of secondary sources.In both of these instances the searcher is not interested ingeneral principles or pre-assimilated material; hence the" pin-points" in the digests, reflecting simply the minuteholdings of specific cases, may for him be the best startingpoint.

However, excellent as they are as depositories of the totalcase-law, the digests are not usually the best starting pointin research. The reason is obvious. In the digests there Isneither fusion nor assimilation. Indeed the word "digest,"in the sense of dissolving and assimilating an object, is al-most a misnomer; since, although they separate their ma-terial into parts, they do nothing to transform it into a newproduct. Each "pin-point" is an isolated speck of light;its relationship, if any, to the specks around it is no concernof the digester. Hence the average searcher, not having inadvance any special knowledge of his subject, will probably

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feel more at home if he starts out with the encyclopedias andannotations, written in the more familiar, fluid type of dis-cussion. The information thus gained will also have thesalutary effect of preparing him for the rigors of the digest-search, which, to one familiar neither with his subject norwith the complex ramifications of the digests, may very wellpresent an almost hopeless task.

One caution to be observed, in using the digests, is not torely too heavily upon the sectional compartments or "pigeon-holes" as being exclusive depositories for the material theypurport to contain.7 While the principle of air-tight com-partments, each untainted by any other, may have a certain"scientific" appeal, its too rigid application to that diffuseand disjointed thing we call the Law is fraught with pitfalls.The ever-expanding "seamless web" of the Law, with itscriss-cross threads and unpredictable offshoots, is not to beso easily regimented. This is particularily true also because,unfortunately, digesters are quite human, and what DigesterA regards today as the proper pigeon-hole may not at allbe the same as what Digester B will choose ten years later.Unhappy then will be the lot of the too-hurried searcher who,enamoured with the ease of an "automatic" search, fondlybelieves, as some have actually advanced,8 that all that needsto be done is to push the magic button of the digest-sectionand out will pop, as from the modern business machine, allthe material he will ever need on his subject.

III

In general arrangement the encyclopedias,9 representingthe "fluid" or "diffuse glow" approach to the Law, are very

7 It has been the experience of professional research-men that the averagenumber of sections which must be examined, in searching a digest, is between Sand 10. An examination of 1 or 2 sections is seldom sufficient; in extreme casesit may be necessary to examine as many as 30 to 40 sections.

8 See Formula for Finding the Law: Lavery, 25 Am. Bar Asso. Jour. 911at 917.

9 The two principal encyclopedias in general use at the present time are:Corpus Juris Secundum; and American jurisprudence.

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much like the digests. They are comprehensive in scope,purporting to cover the entire body of the Law, and in themwe find the same hierarchy of: grand divisions, subdivisions,and sections; the first arranged alphabetically, the secondand third logically or analytically. This similarity, how-ever, which was much more pronounced in the earlier "ency-clopedic digests," 10 extends only to the scope and arrange-ment. Beyond this, the modem well-written encyclopediais altogether different than the digests, constituting a com-pletely distinctive genus, having its own special purpose andfunctions.

The difference between a digest and a encyclopedia liesprincipally in their objectives. In the former the object isto file or pigeon-hole, preserving for the profession an ac-curate and painstaking record, but nothing more than justa record, of the individual decisions; in the latter the objectis to mould and transform, treating the decisions as a whole,and bringing them into the proper perspective. The digesterdeals in holdings; the encylopedic writer in principles. Thedigester compiles the map; the encyclopedic writer paintsthe mural.

The distinctive feature of the encyclopedia is in the"fluidity" of its treatment. Although he may, and in factfrequently does, indulge in specific illustrations of his generalstatements, the encyclopedic writer's main concern is in sift-ing out of the cases the general principles which lie behindthe specific holdings. These principles, with the dissentingviews, exceptions, and peculiar applications which invariablyattach to them, are then worked up into a cohesive whole,and emerge finally in the fluid, easily read form of a run-ning commentary.'

10 For a description of this type of encyclopedia, see Materials and Methodsof Legal Research: Hicks, p. 273.

11 The term "commentary," when used to describe a set of books-e.g. Black-stone's or Kent's "Commentaries" - has a somewhat different connotation than"encyclopedia," although the two types of books have much in common. SeeMaterials and Methods in Legal Research: Hicks, p. 176.

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This "fluidity" of treatment, combined with compre-hensiveness of scope, make the encyclopedias an excellent"starter" in legal research. This assumes of course, as isusually the case, that the investigation is commenced with-out any definite knowledge of the subject in advance, but,on the other hand, with the desire to acquire somethingmore than just a case in point or a bare collection of au-thorities. The value of the encyclopedias to such a searcheris their capacity to give him the setting of his subject. Thepicture, laid before him in broad, bold strokes, furnisheshim with a vista not generally found in his other books.

However, although orientation is perhaps the primaryfunction of the encyclopedia, it performs an importantsecondary function in furnishing the searcher with cases inpoint. This is done by the extensive use of footnotes andthe expansion of the text to include applications of theprinciples expounded.

The extent to which an encyclopedic writer can go in stat-ing the detail of the cases, without abandoning his primaryfunction of presenting the 'broad vista, is, of course, limited.The encyclopedias, therefore, are not substitutes for thedigests. Obviously, one cannot expect to find, within thebounds of a single set of books, the "diffuse glow" of ageneral treatment and at the same time -the precise "pin-points" of specific detail. Hence, for an exhaustive search,the examination of the encyclopedias should always be com-pleted by a thorough investigation of the digests.

IV

Annotations, 2 representing the "spotlight" approach tothe Law, constitute a third and entirely different class of

12 The term "annotation" is used in law books in a variety of senses. Forexample, we have "annotated" statutes, "annotated" rules of court, "annotated"textbooks, in all of which the term means merely a collection of isolated head-notes, or digest paragraphs, each representing the holding of a particular case,without any attempt at correlation or fusion into a systematic whole. This article,however, uses the term in the strict sense of a monograph or legal article attached

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legal source-books. Something about their history mayhelp to illustrate their distinctive purposes and methods.

Originally, in the early common law, lawyers madeup their own annotations, in the so-called "commonplacebooks." "8 The real origin of annotations, however, as adistinct type of legal writing, seems to have been in theearly "notes" of the reporters. 4 Lord Coke, whq madeliberal use in his reports of the caution "Note, reader,that-," followed by a comment on the point at issue, andwho has even been accused of "improving" the reports byhis notes, 5 was probably the first annotator. Saunders' re-ports also contained extensive notes, which in time becameeven more famous than the reports themselves. Henry Clayassisted in the preparation of notes in an early Americanreport. In later years, however, when the publication ofreports was taken over by the state, instead of being left toprivate initiative, the reporters, ensconced in public office,became somewhat less ambitious; and it was not long beforethey gave up altogether the task of inserting "notes" in theirreports. Apparently their absence was missed since it wasnot long (about 1870) before several series of "annotated"reports began to appear. At first the annotations were onlyminor appendages to the reported cases, but, as their pop-ularity grew, the tail began to wag the dog, until now it cantruly be said of the annotated reports, as Holdsworth saysof some of Coke's reports, that "the case is a mere peg uponwhich the law relating to a particular topic is hung." 17

Annotations may be defined as a collection of treatises onspecific legal problems. Although published together in the

to a reported case, as in the "annotated reports system," familiarly known as"L.R.A.," "A.L.R." etc.

13 Holdsworth's History of English Law. Vol. 6, p. 496; Vol. 12, p. 102.14 It is interesting to observe that, in -the annotated "American Reports"

(1869-1887), the annotations are specifically designated "Note by the Reporter."15 Lord Holt, in Coggs v. Bernard, 2 Ld. Raym. 909, 5 Eng. Rul. Cas. 247,

at 252. Cf. Holdsworth's Sources and Literature of English Law, p. 95.16 Warren: History of the American Bar, p. 330.17 Sources and Literature of English Law: Holdsworth, p. 91.

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same volume or volumes, they are separate, independentunits. In method and appearance, an "annotation" is verymuch like a scientific "paper," 18 a law-review "article," or alawyer's "brief," although it has probably somewhat less ofthe critical approach, and more the element of exhaustiveresearch, than usually appears in any of these. The arrange-ment, altogether different than in the digests and encyclo-pedias, is on a seriatim (as written) basis, access to the an-notations being afforded by separately published digests(analytical approach) and indices (alphabetical approach).

The leading characteristic of an annotation is, to borrowa term from Justice Frankfurter, its "specificity." Unlikeeither a digest or encyclopedia, but combining some featuresof both, its aim is to give, both generally and in detail, aconcentrated review of all the case-law on a specific problem.The encyclopedic writer's ideal of total coverage, in thesense of furnishing a discursive treatment of all subjects, isnot as important to the annotator as having an intensivecoverage on a variety of important specific problems. Onthe other hand, he does not care to waste his efforts by deal-ing in certain things which the digester, as the depository ofthe total case-law, is obliged to perpetuate. Somewhere be-tween the two he steers a middle course. The result is avaluable collection of "spotlights," any one of which may,when once focussed on a particular subject, render furtherresearch almost unnecessary.

18 The steps involved in the scientific method of research (See Research andThesis Writing: Almack. pp. 63-65) are strikingly like those involved in writingan annotation.

They are:1. Formulation of a working hypothesis.2. Accumulation of facts or data (cases).3. Classification of these facts (cases).4. Discovery of relationships, or lack of relationships, between them.5. Generalization.6. Statement of results.

Basically, this is the same as the method used by Lord Coke 300 years ago. Healso "goes at length into all the authorities, ancient and modern, explains, dis-tinguishes, and when possible, reconciling conflicting decisions and dicta." Historyof English Law: Holdsworth, vol. 5, p. 463.

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Another claim which the annotator makes for his product

is its "practicality." This arises out of the way in which

annotations are made. The appending of the annotations

to currently reported cases, on the basis of the actual prob-

lem presented in the case, has a tendency to bring up to sur-

face the practical aspects of the problem, to the exclusion

of the merely academic or theoretical. This, of course, has

its disadvantages too, in that some of the broader problems

of the law do not always get full coverage.

Annotations, equally with encyclopedias, are an excellent"starter" in research. Although the latter are superior in

giving a broader vista, the former, because of the intensityof their treatment, may enable one to get everything on thesubject, both general conclusions and detail, all in one place.The necessity of carrying the encyclopedic search on intothe digests in order to get all the detail does not exist in thecase of the annotation, which, once located, furnishes boththe general picture and the specific holdings. The time and

labor thus saved give the annotation a special value, notpossessed by either the digest or the encyclopedia, as a"short-cut" in research.

Because the annotation-system is not one huge "spot-light" which, turning on a swivel, gives the searcher a com-plete view in one operation, but rather a collection of in-

tense "spotlights" rigidly trained on a great variety ofspecific objects, it behooves the searcher, in using an an-notation, to determine carefully its exact scope. This isusually outlined at the beginning of the annotation, some-times under the express heading "Scope" or, more frequently,under "Introductory." ' " These preliminary statements

serve a double purpose: first, in letting the searcher knowwhether he has the right "spotlight," and, secondly, in fur-nishing him with a sort of "check-list" of closely-relatedproblems. By this comparative analysis, the annotator

19 See, for examples: 149 ALR 9; 4 NCCA 627.

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holds the searcher to the exact problem at hand, at the sametime calling his attention to those related, but distinguish-able, problems which invariably crowd around the peripheryof every subject.

V

The three principal methods of "getting at" the Law,developed and perfected by able writers and digesters overa long period, have done much to lighten the load of thepractising lawyer in the field of legal research. Indeed, itis appalling to consider the hopeless confusion and utterchaos which would result if we were suddenly deprived ofthese indispensable aids to research. It can be a source ofpride to the members of the profession that their research-materials, probably greater in bulk and complexity than inany other field of learning, have been so successfully har-nessed and made available for their everyday use.

Paul M. Dwyer.